Bob Debus (Macquarie, Australian Labor Party) Share this | Hansard source

The first recommendation of the landmark 2003 inquiry report by the Joint Standing Committee on the National Capital and External Territories on the governance of Norfolk Island—entitled Quis custodiet ipsos custodies?is:

The continuation of the self government of Norfolk Island, as provided for under the Norfolk Island Act 1979 (Cth) … be conditional on the timely implementation of the specific external mechanisms of accountability and reforms to the political system recommended in this Report.

I make the point that the joint standing committee included just about the widest spectrum of political party allegiances possible in the Australian parliament at that time. It is precisely and carefully written, consistent itself with a variety of earlier and later reports. Moreover, the Minister for Regional Services, Territories and Local Government at the time, the Hon. Wilson Tuckey, contributed a lengthy statement about the nature of the relationship between the Commonwealth and the Norfolk Island government, which is included in the report itself.

The report was prepared under the chairmanship of Senator Ross Lightfoot, supported in essence by the then minister, Wilson Tuckey, and it asked for urgent action to improve the governance of Norfolk Island. If my friend the present Minister for Home Affairs and I as the minister immediately preceding him have been concerned during the course of the Rudd government to bring forward amendments to the Norfolk Island Act, which were seen to be well overdue in 2003, it will be passing difficult to plausibly accuse us of either radical or precipitate behaviour. I should mention that the contemporary joint standing committee—some of its longstanding and most committed members were there in 2003, including the Chair, Senator Kate Lundy; the honourable member for Canberra; and the honourable member for Hinkler, who is here in the chamber—has recommended support for the present bill, the Territories Law Reform Bill 2010, in another report brought down a month or so ago.

The history of Norfolk Island is singular. Polynesians lived there for a few years in the 14th and 15th centuries. Captain James Cook discovered the island uninhabited on his second voyage. It was seen by the British government as an auxiliary colony. Indeed, it was established as a convict settlement within six weeks of the settlement of Sydney Cove in January 1788. Abandoned between 1814 and 1825, it then entered another period as a notorious penal settlement, until that was in turn run down after 1847. At the time, it lay within the jurisdiction of the colony of Van Diemen’s Land, but in 1856 the British government relocated the descendants of the mutineers from HMS Bounty and their Tahitian companions from Pitcairn Island to Norfolk and placed it under the administration of the Governor of New South Wales. Thus it remained until it was accepted as a territory of the Commonwealth by an order in council in March 1914 pursuant to section 122 of the Constitution of Australia.

It needs to be borne in mind that Norfolk Island has a population of fewer than 2,000—less than a single ward in most local government councils in Australia. Nevertheless, the status of Norfolk Island is still sometimes contested by those who see it as a separate, culturally distinct dependency with a right to independence. That independence proposition has been argued in courts and asserted to the United Nations, but I cannot find any suggestion that that view has ever been entertained by the Australian government or the Australian legal system.

Indeed, I have found instead a consistent and general level of consensus in the many reports of the joint standing committee on territories over the last 30 years and in the comments of a long succession of territories ministers, both Labor and coalition. All agree that Norfolk Island is part of the Australian federation. All agree that its unique history and culture, together with its geographical position, require that it should be given a special status. Therefore, all agree that it is desirable to have some form of self-government and that it is better to modify the existing system than to withdraw self-government. However, all agree as well that the way of actually doing government has to be improved a lot.

It was my direct experience during discussions in 2008 and 2009 that the idea of Norfolk Island as a separate dependency is still alive, so I repeat the decisive commentary of the joint standing committee in 2003:

The status of the Island was considered in Newbery v The Queen. In that case, Justice Eggleston found the Norfolk Island Act 1957 (Cth) to be constitutionally valid, and that the history of, and historical documents relating to, Norfolk Island, showed that it became, in 1914, a Territory placed by the Crown under the authority of the Commonwealth within the meaning of the Section 122 of the Constitution.

Any remaining doubts about the status of the Island were removed by the High Court of Australia in 1976 in Berwick’s Case in which Justice Mason—with whom the other judges agreed—stated that the history of the Island made it “abundantly clear that Norfolk Island forms part of the Commonwealth of Australia”. The Hon Robert Ellicott, QC, widely respected on-Island as the architect of self government for Norfolk Island, concurred with this position in evidence before the Committee on 25 July 2003.

The Hon. Robert Ellicott is also respected by me personally. During my childhood and youth we lived in the same district, and he moved my admission as a solicitor to the Supreme Court of New South Wales. He is a man of enormous gift and integrity, and I know that he still maintains an interest in the welfare of Norfolk. He introduced the Norfolk Island Act 1979 following the detailed work conducted by the Royal Commission into Matters Relating to Norfolk Island by Justice Sir John Nimmo. Some of Nimmo’s recommendations were not followed, including those concerned with taxation, grant assistance arrangements and social security. Those matters are difficult. They have been discussed by ministers and the joint standing committee over the subsequent years. They are, I believe, of fundamental importance. They need to be addressed, and I think that some issues on the island will never be resolved until they are. However, there is no intention to address taxation or grant arrangements in this bill.

The 1979 act was introduced under the plenary power of section 122 of the Australian Constitution. The act replaced an advisory council with a nine-member local legislature with the power to make laws over a very wide range of responsibilities exercised in other parts of Australia by local, state and Commonwealth governments. The nominal head of government is an administrator who relies on the advice of Norfolk Island ministers when exercising powers and functions set out at length under schedule 2 of the act. On the other hand, powers set out in schedule 3 of the act are subject to Commonwealth veto. Schedule 3 includes matters of obvious national concern such as immigration, customs, fishing and social security.

The bill before the House today proposes detailed changes and additions to machinery-of-government provisions. Some seek to bring the government of Norfolk Island more into line with the idea of ministerial responsibility under the Westminster system—for instance, by prescribing a process for selecting and dismissing the chief minister and ministers, who are limited in number to three, and providing for a no-confidence motion process for a chief minister. The Administrator will be able to dismiss members of the Norfolk Legislative Assembly for serious or unlawful conduct, and the Governor-General will be able to dissolve the legislative assembly under a measure identical to that which exists in the Australian Capital Territory.

The Norfolk Island Act was drafted to enable the Commonwealth minister responsible to carry out the checks and balances necessary to ensure that Norfolk Island legislative proposals comply with Australian government policy objectives and Australia’s national obligations under international law. The right of the Australian government to intervene is therefore an existing part of the island’s system of governance. The assent processes established under the act are designed to protect the Australian government’s national interest in Norfolk Island. This is particularly important precisely because the Norfolk Island government has executive responsibility for a range of Commonwealth type powers such as immigration, customs, quarantine and so on.

The act clearly intends that schedule 3 and non-schedule bills be subject to Commonwealth scrutiny. However, as presently drafted, the act does not allow for Commonwealth scrutiny of schedule 2 matters. The present strict designation of matters in schedules 2 and 3 does not recognise the difficulty of making an absolute determination about which particular matters may affect the national interest or of attempting to foresee what issues will be of interest to the Commonwealth in the future. The inability of the Commonwealth to intervene on schedule 2 matters limits its ability to respond to a new and emerging national policy interest or objective. For example, a number of matters presently listed in schedule 2 could easily intersect with national policy objectives, including item 25, firearms control; item 87, national censorship objectives; item 48, telecommunications; item 93, bankruptcy and insolvency; and item 88, child, family and social welfare.

Since 1979, additional powers have been transferred to the Norfolk Island government’s authority under schedule 2 with the expectation that Norfolk Island would enact and administer appropriate legislation and that the legislation would be consistent with the national interest and Australia’s international legal obligations. Many of the powers transferred in 1989 and 1992 are either not supported by legislation or subject to inadequate legislation. For example, the Legal Profession Act 1993 is yet to be fully implemented, the Companies Act 1985 has not maintained parallel provisions with Australian corporate law, there is neither navigation legislation nor censorship legislation and so on. As presently drafted, the Commonwealth is also not able to introduce bills directly into the Norfolk Island Legislative Assembly for consideration. Therefore, the Commonwealth’s ability to intervene on matters within schedule 2 of the act is at present limited to the passage of Commonwealth legislation under the overarching constitutional territories power.

This bill proposes to amend the Norfolk Island Act to extend the Commonwealth’s legislative oversight of Norfolk Island legislation by providing the responsible Commonwealth minister with the power to issue instructions on schedule 2 matters; expanding the options available to the Norfolk Island Administrator when he or she is presented with a proposed law by allowing him or her to refer bills on schedule 2 matters to the Governor-General where previously this option only existed for schedule 3 matters; extending the Governor-General’s existing legislative power to allow him or her to introduce a proposed law on any topic into the Norfolk Island legislative assembly; and providing the responsible Commonwealth minister with authority to introduce laws into the legislative assembly for the peace, order and good governance of the territory.

It is especially important to point out that the increased Commonwealth legislative oversight of Norfolk Island is advanced through provisions that are, in this case, permissive and not mandatory. These provisions will assist the Australian government to fulfil its obligations to the community of Norfolk from a national perspective. But these provisions do not restrict the Norfolk Island legislative assembly’s almost unlimited power to ‘make laws for the peace, order and good government of the territory’.

Schedule 1, part 2 of the bill proposes amendments to the Norfolk Island Act to provide for a minimum three-year term for the legislative assembly, with a maximum of four years. That will provide certainty about the legislative assembly’s term. The bill also proposes amendments to allow the Australian government to make regulations on the voting system to be used in elections.

There are other matters. It is an obvious fact that, since 1979, there have been quite massive changes in the way that government is held to account for its performance in every Australian jurisdiction and at every level, with the singular exception of Norfolk Island. A series of measures is therefore proposed in the bill before the House to increase public accountability and transparency. Not a few of them have been recommended by various inquiries for up to 20 years. You would have to say that the Commonwealth really bears far more responsibility than the Norfolk Island government for the failure to implement them. One understands that a government as small as the Norfolk Island government cannot have the resources to easily meet the rigorous requirements of modern administration in all respects; after all, much larger local governments on the mainland routinely rely on state governments to legislate much of the provision for the machinery of accountability. Nevertheless, it is unacceptable for any Australian jurisdiction to fail to meet even the most basic standards in this respect. Credibility depends on it.

Therefore, this bill proposes amendments to the Administrative Appeals Tribunal Act which will confer a merits review jurisdiction on the AAT for decisions made under Norfolk Island legislation. These changes will be introduced in stages, in consultation with the Norfolk Island government. The bill proposes amendments to the Freedom of Information Act to apply the act to Norfolk Island in the same way that it applies to Commonwealth agencies. It provides for the assumption by the Commonwealth Ombudsman of the function of Norfolk Island Ombudsman under Norfolk Island legislation and it establishes the requirement that Norfolk Island public sector agencies adhere to information privacy principles in the same manner as Australian government agencies.

Reform of Norfolk Island financial management and reporting was specifically recommended in the 2008 report by the Senate Select Committee on State Government Financial Management. The Norfolk Island government and administration commenced financial reporting according to international financial reporting standards for the first time only in 2008-09. Prior to that, it had used only local accounting principles.

The bill before the House establishes a legislative financial framework in the Norfolk Island Act 1979 and provides for the details of this framework to be included in subordinate legislation. The details of the financial framework are being developed in consultation with a joint working group comprised of officers from the Department of Finance and Deregulation, the Attorney-General’s Department and the Norfolk Island administration and government. The proposed financial framework will bring territory authorities into Norfolk Island’s consolidated financial statements, budgets and annual reports, providing a more complete picture of Norfolk Island’s financial position. The framework will also introduce a statutory requirement for all financial statements, annual reports, audit reports and budgets to be tabled in the Norfolk Island legislative assembly. The framework will set minimum budget requirements, including the production of qualitative and quantitative statements. It may include comprehensive budget financial statements based on external reporting standards, including forward projections. Subject to consultation with Norfolk Island through the working group, requirements are also likely to include compliance with Australian accounting standards, which would mean that Norfolk Island was preparing financial reports on a basis consistent with Australian local governments, state governments and the Commonwealth government. In other words, these are extremely important provisions.

Finally, there are some important acknowledgements. The staff at the Territories Division of the Attorney-General’s Department of Australia have worked persistently and sometimes under considerable difficulty over a long while to bring resolution to the issues that we are dealing with today. I personally wish to acknowledge the Norfolk Island government but especially former Chief Minister Andre Nobbs, with whom I was in very frequent contact as Minister for Home Affairs before June last year. Andre always sought constructive solutions. I wish to express my particular admiration for the steadfast work of the Administrator of Norfolk Island, Mr Owen Walsh, who is so well supported by his wife, Bianca, a Pitcairner. I believe the island has been most fortunate to have a person of his competence and dedication to help it through the difficult negotiations of recent years. There is no doubt that those negotiations have sometimes been difficult. On the other hand, there is no doubt that there has remained a great deal of goodwill within the Australian parliament, on both sides of this House, to bring about a resolution of long-outstanding matters so far as the governance of Norfolk is concerned. I have great pleasure in commending the bill to the House.

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